Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations (2025)

Chapter: Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix

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Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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APPENDIX C: STATE OF PRACTICE SURVEY QUESTIONNAIRE (TRIBES/NHOS) AND RESPONSE MATRIX

PRACTICES, APPROACHES, and EXPERIENCES

  • When the agencies are assessing the effects of their projects on archaeological sites and places of religious and cultural significance to your Tribe, has your consultation with FHWA and state DOTs been a positive and constructive experience?
    • □ Yes
    • □ No
    • □ Other: _________________________________________________________________
    • If yes, what made it a positive and constructive experience? ________________________
      • How often do these agencies consider the expertise of your Tribe in making no effect and no adverse effect determinations?
        • □ Always
        • □ Sometimes
        • □ Never
        • □ Other: _________________________________________________________________
        • How do agencies consider your Tribe’s expertise in making no effect and no adverse effect determinations? _________________________________________________________
          • When do agencies reach out to your Tribe for expertise?
            • □ Early project planning
            • □ NEPA scoping
            • □ Section 106 Consultation
            • □ Other: _________________________________________________________________
            • If an FHWA and state DOT project touches a place of religious and cultural significance to the Tribe, or if the place is visible from the project area, has the Tribe ever agreed that the project would not affect or have no adverse effect on this place?
              • □ Yes
              • □ No
              • Does the type of project influence this decision?
                • □ Yes
                • □ No
                • □ Other: _________________________________________________________________

              SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES

              Page 151
              Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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              2-1. When the agencies are assessing the effects of their projects on archaeological sites and places of religious and cultural significance to your Tribe, has your consultation with FHWA and state DOTs been a positive and constructive experience? Yes No Other 2-1a. If yes, what made it a positive and constructive experience? 2-2. How often do these agencies consider the expertise of your Tribe in making no effect and no adverse effect determinations? Always Sometimes Never Other 2-2a. How do agencies consider your Tribe’s expertise in making no effect and no adverse effect determinations? 2-2b. When do agencies reach out to your Tribe for expertise? Early project planning NEPA scoping Section 106 Consultation Other 2-3. If an FHWA and state DOT project touches a place of religious and cultural significance to the Tribe, or if the place is visible from the project area, has the Tribe ever agreed that the project would not affect or have no adverse effect on this place? Yes No 2-3a. Does the type of project influence this decision? Yes No Other
              neither positive nor negative. Just work x x Considered more of an obstacle than a safeguard to protect these sites. x x x x Yes, but want to say question 2-3 is worded badly and x
              x good communication x Sometimes x x confusing Yes x
              x the key word here is “generally”. It is not always. Another key word is “consider”. Generally, if CPs are considered true stakeholders, and given a meaningful voice, things go well. x This all depends whether you have a programmatic agreement or Memorandum of Agreement (MOA)/Memorandum of Understanding (MOU). In these cases, it would be acceptable not to consider the tribe’s expertise, but many notify agencies regardless. The key words here would be “good faith” x x x x Yes x
              x Generally, WSDOT are very forthcoming with there undertaking and are willing to discuss concerns expressed. Not entirely sure. Generally they ask for information regarding any potential unidentified cultural resource in the APE. I suspect that they take into consideration of the Cultural Resource Department’s comments x WSDOT generally ask for concurrence on all the major NHPA steps (APE, need for additional work, Determination of effect/s, ect.). By the time they make a determination of No Effect, they pretty much already have concurrence from all parties. Depends on the undertaking. NEPA process they claim its a PEL, which is basically NEPA. WSDOT claims that the PEL is not NEPA, but ties in when a selected alternative is chooses. They usually consult with us halfway during the PEL study. However, they ask during essentially NEPA. During the For Categorical Exclusions, usually at the start of Section 106. For really large-scale undertakings, very early in the process. x x x
              x x When it benefits the organizations and their projects, my opinion is valuable. They do not, x x x
              x The professional demeanor and non-conciliatory manner in which DOT and FHWA representatives are hearing what Tribal professionals impart without judgement or condescending attitudes which was prevalent in past decades. Our voices are being heard at last and this makes for a very productive experience. x The FHWA and DOT’s (I deal with five state DOT’s within our homeland territories) and have found each to be cooperative on every occasion. Early project planning x x x
              While the experience with DOT and our Tribe has not been an overwhelmingly positive experience, neither has it been exceptionally negative. x x Often, Tribal expertise is considered an afterthought in the process of considering no effect and adverse effect determinations. x x x
              my state agency has become difficult recently x x Depends on the agency x x x
              Page 152
              Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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              2-1. When the agencies are assessing the effects of their projects on archaeological sites and places of religious and cultural significance to your Tribe, has your consultation with FHWA and state DOTs been a positive and constructive experience? Yes No Other 2-1a. If yes, what made it a positive and constructive experience? 2-2. How often do these agencies consider the expertise of your Tribe in making no effect and no adverse effect determinations? Always Sometimes Never Other 2-2a. How do agencies consider your Tribe’s expertise in making no effect and no adverse effect determinations? 2-2b. When do agencies reach out to your Tribe for expertise? Early project planning NEPA scoping Section 106 Consultation Other 2-3. If an FHWA and state DOT project touches a place of religious and cultural significance to the Tribe, or if the place is visible from the project area, has the Tribe ever agreed that the project would not affect or have no adverse effect on this place? Yes No 2-3a. Does the type of project influence this decision? Yes No Other
              Since I am fairly new to the position, I have not participated in consultation. x I am unaware, since I am fairly new to my position. x I don’t know. x x x
              They receive our comments on whether it is no effect and no adverse effect and take it into consideration. If they do not consider our expertise then they take our comments and do not take them into consideration. Depending on the Agencies, we are contacted at any and all stages.
              It depends on who the contractors are x Sometimes x There are times when we do concur, but when we dont we usually plan a time to discuss NEPA scoping x Yes x x
              Page 153
              Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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              • Have you experienced challenges in consulting on no effect and no adverse effect findings with FHWA and state DOTs?
                • □ Yes
                • □ No
                • If yes, please discuss the challenges below: _______________________________________
                  • Have you had experiences with disagreements or disputes on no effect or no adverse effect findings?
                    • □ Yes
                    • □ No
                    • If “Yes” what was the substantive nature of any disagreement? ______________________
                      • In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies and tribes in the context of the no effect and no adverse effect determination process? _________________
                        • Do you have specific projects or case studies that you can share with us that exemplify successful and challenging determinations of no effect and no adverse effect? _________

                        SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES

                        Page 154
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        2-4. Have you experienced challenges in consulting on no effect and no adverse effect findings with FHWA and state DOTs? Yes No 2-4a. If yes, please discuss the challenges below: 2-5. Have you had experiences with disagreements or disputes on no effect or no adverse effect findings? Yes No 2-5a. If “Yes” what was the substantive nature of any disagreement? 2-6. In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies and tribes in the context of the no effect and no adverse effect determination process? 2-7. Do you have specific projects or case studies that you can share with us that exemplify successful and challenging determinations of no effect and no adverse effect?
                        x x Answer is no, but previous THPO might have, not in this position long enough The courtesy emails are fine to start the process. We can file them if we want. Not really
                        x Tribes need to be brought in earlier in the process x lack of avoidance or changing or canceling project Bring tribes into the planning process earlier Not now
                        x x I can only think of one offhand. An overpass less than 1000 feet from our office the was FHWA (locals program) funded, and we asked the WASH DOT reps four times why we hadn’t received notification of the project. communication. Regular meetings (we have monthly) to discuss projects. To be honest, usually no effect, or no adverse effect ruling are relatively benign projects, but occasionally one that is highly significant slips through. I can not recall any specific examples.
                        x x Having the cultural resource staff and planners reach out once a year for a meet and greet discussion regarding non undertaking related stuff. Maintaining that connection is crucial to having respect for both agencies. Also being involved early in the planning process. No
                        x Communication being one, they rely on their archaeologists and do not hear the tribes. x This is across the board. Fac to face meetings on these specific issues. All projects.
                        x x 1) Being open to hearing that there is an effect; 2) understanding when to not continue upon a line of questioning about the significance of a site/place that has importance to a Tribe; 3) comprehending that when a Tribe has a concern to be open and respectful. Yes, but to reiterate one particular case would take a large amount of time and space.
                        x x A majority of disagreements come from projects that use surveys that are five or more years out of date with recommendations from other entities that no updates are required. New surveys could potentially bring to light things that would not have been noted in previous reports. The best approaches have been to approach Tribes earlier in the process than some projects in the past have. This allows time for Tribes to prepare information and, should the need arise, to communicate internally to all the departments and individuals involved in the process. At this time, no.
                        x Different info regarding the project was conveyed to me while that agency was actively attempting to buy the same land to remove from tribal trust and clear for the project x it is ongoing tribes need to be consulted years in advance of some projects and we need to be viewed in the same way as SHPOs I don’t have time to go through records to tell you this info
                        x x Early project planning no
                        x Building lasting personal relationships has been the best and almost foolproof way to preventing problems with the determination process. Actually meeting and interacting in non section 106 settings is the best way for section 106 to succeed. No
                        Usually, when a project has pre-existing infrastructure that has not undergone any formal consultation with tribes. i.e. from 1960 there is almost always an expectation that the tribes would be okay with the surveys that occurred later on. However, because THPO’s were not created until 1992, the notification of a road project occurring is the first time the tribes are becoming aware of such places. Because of this, the tribes request another survey to be completed, especially if it was completed in 1980 or 1990 without our involvement. Tribes are the only ones able to identify places of their ancestors, and majority are overlooked because of such reason. Usually, funding issues or emergent need for repairs are the justification for not wanting to do due diligence to ensure the tribes are okay with the decisions being made as a consulting party. x The surveys were done without any tribal involvement. Cultural places require specific cultural expertise that those outside the tribe do not have. Also, determinations cannot be made without proper formal consultation and evaluation by THPO’s in accordance with the law. Based on my own experience and not speaking for other tribes, I find it more positive when there collated data provided during our initial request after reviewing projects. When research of files and or survey information is compiled for our review it speeds up this process and can lead to an easier determination. When this is not provided, we do not usually concur with a no effect or no adverse determination. There are few instances when this does happen, but usually we request more information regardless. Burial Mounds and testing to determine whether they are in fact “burials” containing human remains. Also, the boundaries from which the minimum approaching distance has been set. How would any of us know how far out our ancestors are/can be buried? This can also be a part of an entire district and or cultural landscape containing burials for specific tribal reasons, as an example.
                        Page 150
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        Page 151
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        Page 152
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        Page 153
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        Page 154
                        Suggested Citation: "Appendix C: State of Practice Survey Questionnaire (Tribes/NHOs) and Response Matrix." National Academies of Sciences, Engineering, and Medicine. 2025. Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Washington, DC: The National Academies Press. doi: 10.17226/29036.
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                        Next Chapter: Appendix D: List of Interviewees and Interview Questionnaires
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